May 09, 2010

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Attorney General Eric Holder is endorsing the idea of modifying Miranda rights in terrorism investigations--a curious stance in light of the fervor with which Holder and other administration officials have been arguing recently that administering Miranda rights is no obstacle to such cases.

In fact, Holder has gone even further, asserting recently that reading suspects their rights may actually them to cooperate.

"If we are going to have a system that is capable of dealing, in a public safety context, with this new threat...I think we have to give serious consideration to at least modifying that public safety exception” to the Miranda warnings, Holder said Sunday on ABC's "This Week."

Changing the rule is “one of the things that I think we’re going to be reaching out to Congress to do – to come up with a proposal that is both Constitutional, but that is also relevant to our time and the threat that we now face," the attorney general said.

At a Senate Judiciary Committee hearing on April 14, Holder concurred with Sen. Sheldon Whitehouse (D-R.I.) that telling suspects they have the right to remain silent and to consult with an attorney can actually elicit useful information.

"These very good FBI interrogators -- they talk about the need to establish a bond, some level of trust. And one of the things that a couple of talked about with me is the giving of these warnings indicates to that person that you are going to be fair. They become more trusting and perhaps more desirous of sharing information," Holder said.

"And I think what we have seen is that the giving of Miranda warnings does not necessarily mean that the information flow stops. I think quite the contrary. What we have seen over this past year with regard to Zazi, Abdullah Mutallab, Headley, all of whom were given Miranda warnings. The information flow was substantial," the attorney general said.

Holder's new proposal isn't literally inconsistent with what he said before, since any legislation would presumably not prohibit giving Miranda warnings and simply give the administration greater flexibility to handle such cases as it sees fit. But it does seem odd given that it plays into arguments that Miranda hampers terrorism probes.

At the same hearing last month, Sens. Arlen Specter (D-Pa.) and Jeff Sessions (R-Ala.) argued that it was illogical to think that Miranda warnings would enhance the flow of information from a suspect.

"I find it hard to accept that the assistance of establishing a rapport and bond by the interrogator with the subject would be sufficiently enhanced to warrant giving the Miranda warnings....By the time you get through saying, "'ou have a right to remain silent, anything you say...' there are five of them, then you get express waivers...that's a big discouraging factor," Specter said.

"There is no doubt in my mind, as Senator Specter has suggested, that when you tell an individual their right to have a lawyer, they have a right to remain silent, and that you will appoint them one and bring them one, that you are going to get less actionable intelligence if -- than if you didn't do so," Sessions said.